United States District Court, D. New Hampshire
J. Barbadoro United States District Judge
this Court is FCI-Berlin inmate Kevin Hiller's memorandum
(Doc. No. 13), filed in response to the October 22, 2019
Order in this case, granting Hiller leave to file an amended
Rule 59(e) motion seeking to reopen the judgment. In
considering the instant memorandum (Doc. No. 13), in the
context of reviewing the evidence filed by the respondent
Warden in support of the motion for summary judgment that
this Court granted, see Oct. 8, 2019 Order, this
Court has identified an issue unrelated to the specific
arguments Hiller has made, which could affect the Bureau of
Prisons (“BOP”) calculations regarding when
Hiller's 18-year federal sentence began to run, and/or
the BOP's rationale for its sentence calculations at
issue here. Specifically, there is a state court document in
the record before this Court, stating that Hiller's state
sentence for a 2001 robbery charge “maxed” in
June 2008,  three years before the June 3, 2011 date
BOP determined Hiller's federal sentence began to run.
Although Hiller has not raised that issue in Document No. 13,
the Court treats Hiller's filing as an amended Rule 59(e)
motion, takes that motion under advisement, and directs the
parties to brief whether the discrepancy in the record
identified by this Court affects BOP's calculations or
the agency's rationale for its decision, or otherwise
provides grounds for reopening the judgment here.
following facts are undisputed. In June 2001, Kevin Hiller
received a 4½ - 10 year sentence for robbery in
Pennsylvania state court (“2001 robbery”).
See Decl. of Veronica Hodge (“Hodge
Decl.”) ¶ 5 (Doc. No. 9-1, at 2). In
2005, Hiller was transferred to a work release program as
part of his state sentence on the 2001 robbery. Id.
¶ 6. In May 2006, Hiller was arrested by Pennsylvania
authorities for committing additional robberies. Id.
¶ 7. Hiller's work release was revoked, and he was
returned to a Pennsylvania prison to continue serving the
2001 robbery sentence. Id. ¶ 8.
2006 arrest resulted in federal Hobbs Act charges. On October
31, 2006, while Hiller was in Pennsylvania Department of
Corrections (“PDOC”) custody on the 2001 robbery,
the federal court issued a writ of habeas corpus ad
proseqendum to “borrow” Hiller from the PDOC so
that he could answer the federal charge. Id. ¶
9. While Hiller was temporarily in the custody of federal
authorities on the Hobbs Act case, the state brought two
additional state robbery charges against Hiller (“2007
and 2008 state robbery charges”), to which Hiller
ultimately pleaded guilty.
December 19, 2008, while the 2007 and 2008 state robbery
charges were still pending, the federal court sentenced
Hiller to 18 years in prison for the Hobbs Act offense.
Id. ¶ 11. That court intended to have the
federal sentence run concurrently with any sentence to be
imposed by the state courts in the 2007 and 2008 state
robbery charges. See, e.g., United States v.
Hiller, No. 06-cr-0096-04 (E.D. Pa. Mar. 20, 2017) (Doc.
No. 9-17, at 9).
was returned to state custody on January 2, 2009. Hodge Decl.
¶ 12. Eleven months later, on December 2, 2009, the
state court sentenced Hiller to a 3 - 6 year prison term on
the 2007 and 2008 state robbery charges. The state court
judge in those cases indicated that the state sentences would
be served concurrently with the 18-year federal sentence
imposed in December 2008 on the Hobbs Act offenses,
id. ¶ 13, and the state court credited Hiller
with the time he had spent in detention after his September
2007 and September 2008 arrests on those charges.
Pennsylvania released Hiller to federal custody on September
7, 2012. Id. ¶ 14.
filed administrative proceedings to challenge the BOP's
sentence calculations affecting the projected end-date of his
18-year federal sentence. In response to Hiller's
filings, the BOP made a nunc pro tunc designation of
Hiller's state institution as the place where he was
serving his federal sentence starting on June 3, 2011, and
granted Hiller corresponding credit towards his 18-year
federal sentence beginning on that same date, which the BOP
concluded was the date Hiller had completely served his state
sentence on the 2001 robbery case.
Court's October 8, 2019 Order granted the respondent
Warden's motion for summary judgment filed in this §
2241 petition, ruling that judgment as a matter of law was
warranted in light of respondent's “Statement of
Undisputed Facts, ” to which Hiller had failed to file
any objection. After judgment entered, Hiller filed a motion
(Doc. No. 12) seeking an opportunity to file an out-of-time
objection to the summary judgment motion. This Court's
October 22, 2019 Order then granted Hiller leave to file an
amended Rule 59(e) motion, through which the Court allowed
Hiller to file his objection to respondent's summary
judgment motion. The instant filing (Doc. No. 13) is
Hiller's response to that October 22, 2019 Order. The
respondent Warden has not filed any response to Doc. No. 13.
reviewing the record in response to Document No. 13, and
re-examining the exhibits filed by the respondent in support
of the underlying dispositive motion (Doc. No. 9),
the Court has identified a discrepancy in the record that
Hiller has not highlighted, which could draw into question
the BOP's conclusion that Hiller's federal sentence
began on June 3, 2011. Specifically, a document in the
record, generated by the PDOC, states that, at some point,
the PDOC determined that Hiller's sentence on the 2001
robbery case “maxed” on June 3,
2008. The existence of that document raises
questions regarding BOP's calculations that rest on a
finding that Hiller was released from that state sentence on
June 3, 2011.
enable this Court to issue an informed disposition of
Hiller's amended Rule 59(e) motion, the Court directs the
Warden to file a brief with exhibits: clarifying whether the
discrepancy in the record identified by this Court affects
the BOP's sentence calculations or the BOP's
rationale for its calculations, and expressing the
Warden's position on whether the judgment here should be
reopened. Hiller may file a response relating to those
issues, according to the schedule set forth below.
foregoing reasons, the ...